' This second appeal is directed against the judgment dated 30-6-1969 of the learned Additional District Judge, Sialkot whereby the appeal was disposed of in terms of statements of learned counsel for the parties made before the first appellate Court.
2. The necessary facts, briefly, stated are that Mst. Barkat Bibi, respondent, filed a suit for declaration against Sher Muhammad etc. defendants-appellants to the effect that she continues to be occupancy tenant of the suit land and as a consequential relief sought permanent injunction restraining the defendant from interfering in her possession of the suit land. She also sought a decree for possession of land specified in para. 3 of the plaint. Sardar son of Bhuda, husband of Barkat Bibi was occupancy tenant of the suit land. He died 30 years back and on his death the suit land was mutated in the name of Barkat Bibi as widow of Sardar, last male occupancy tenant of the suit land vide mutation Exh.P.2. It is on 10th July, 1964 that the Revenue Authorities mutated the said land in the name of the plaintiff and the defendants, that is, Sher Muhammad and Mehr Din sons of Chano and Mst. Rabia Bibi and Fatima Bibi daughters of Sardar. The mutation dated 10-7- 1964 was sanctioned on the basis that the limited interest of Barkat Bibi plaintiff had extinguished.
The suit was resisted by the defendants, the collateral of Sardar and the learned trial Judge after framing the issues and recording evidence of the parties, dismissed the suit primarily in view of the provisions contained in section 3 of the West Pakistan Muslim Personal Law Shariat Amendment Act, 1962 (Act V of 1962).
3. Mst. Bark at Bibi, plaintiff, filed first appeal against the judgment and decree dated 25-9 -1967 of the learned trial Court. She impleaded her own daughters Rabia and Fatima as respondents alongwith collaterals of Sardar, namely, Sher Muhammad and Mehr Din. This appeal was accepted on the basis of statements of learned counsel for Barkat Bibi and learned counsel for Sher Muhammad and Mehr Din, respondents before the first appellate Court and now the appellants.
This led to filing of the present second appeal.
4.I have heard the learned counsel for the parties and have gone through the record of both the learned Courts below. The first appeal against Rabia and Fatima could not have been accepted as admittedly they had not attended the proceedings and no consenting statement on their behalf was made. The decree of the first appellate Court to that extent is admittedly illegal. As regards the alleged consent given by the learned counsel for Sher Muhammad and Mehr Din, present appellants is concerned, it was submitted that the said consent on a question of law is not binding on the appellants. The statement made by their learned counsel reads as under:-- {{URDU TEXT}} {{Image}} ' A perusal of the statement shows that learned counsel had conceded the suit in view of the judgment reported as PLD 1969 Lah. 412 (year 1959 has been wrongly noted in the statement). Both the learned counsel also state that it is Sarwar Bibi's case which was sought to be referred to by the learned counsel while making statement. The law now stands settled that limited interest of widows stood terminated on enforcement of Act V of 1962. It has been so held in the case of Abdul Ghafoor and others v. Muhammad Shafi and others PLD 1985 SC 407 and Lal and three others v.
Rehmat Bibi and another PLD 1991 -SC 582.
5. The concession made on the question of law is not binding on the appellants. The widow's interest stood terminated on enforcement of Act V of [962. The suit of the plaintiff-respondent, as such, could not succeed. The lecree passed by the learned first appellate Court cannot be held to be a :onsent decree. The net result is that the judgment and decree dated 30-6-1969 of the learned first appellate Court is set aside and consequently the suit of larkat Bibi, plaintiff-respondent stands dismissed. This appeal is accordingly Bowed leaving the parties to bear their own costs.